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AMERICAN 

CORRESPONDENCE   SCHOOL 
OF  LAW 


LAW    OF   BAILMENT 


BY 

ORVILLE  W.   COOLIDGE 

!'! 

Circuit  Judge  of  the  Second  Judicial  Circuit  of  Michigan 


AMERICAN    CORRESPONDENCE    SCHOOL  OF   LAW 
CHICAGO,  U.  S.  A. 


COPYRIGHT  1908 

BY 

AMERICAN  CORRESPONDENCE  SCHOOL  OF  LAW 
CHICAGO 


1 1-17-67 


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\* 

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BIOGRAPHICAL  SKETCH 

OF 
ORVILLE  W.  COOLIDGE. 


Orville  W.  Coolidge  was  born  in  Edwardsburg,  Cass  County, 
Michigan,  in  1839. 

After  passing  through  the  grammar  schools,  he  entered  Michi- 
gan University  where  he  graduated  in  1863,  and  later  on  in  due 
course  graduated  from  Harvard  Law  School  in  1865  with  the 
degree  of  LL.B. 

After  graduating,  he  immediately  entered  upon  the  practice  of 
law,  locating  at  Niles,  Michigan.  His  practice  steadily  grew  and 
he  participated  in  many  important  lawsuits,  meeting  with 
marked  success.  In  1893  he  was  singled  out  by  his  fellow  prac- 
titioners and  selected  as  Circuit  Judge  of  the  Second  Judicial 
Circuit  of  Michigan. 

When  his  term  of  office  expired,  he  was  re-elected.  Again, 
acknowledged  by  all  to  be  one  of  the  most  efficient  and  popular 
•udges,  in  1905  he  was  re-elected,  this  time  without  opposition, 
and  is  now  serving  his  third  term. 

His  career  on  the  bench  has  been  marked  with  distinction  and 
his  opinions  have  always  been  painstaking  and  respected. 

His  service  on  the  bench  of  nearly  sixteen  years  has  given  him 
a  distinction  scarcely  equalled  by  but  few  lawyers. 

His  lecture  on  Bailments,  delivered  to  the  students  of  the 
American  Correspondence  School  of  Law,  carries  with  it  not  only 
the  expression  of  ripe  experience,  but  also  the  thought  of  one 
who  has  throughout  life  maintained  a  high  character  for  integrity 
and  fidelity  to  the  trust  bestowed  upon  him. 


LAW   OF   BAILMENT 


I. 

Bailment,  which,  is  derived  from  the  French  word> 
"bailler,"  "to  deliver,"  is  denned  as  a  delivery  of  per- 
sonal property  by  one  party  'to  another,  to  be  held  ac- 
cording to  the  purpose  or  object  of  the  delivery  and  to 
be  returned  when  that  purpose  is  accomplished,  or  other- 
wise dealt  with  according  to  the  directions  of  the  Bailor. 
The  party  delivering  is  called  the  "Bailor"  and  the 
party  receiving,  the  "Bailee."  The  principles  of  the 
English  Law  of  Bailment  were  first  systematically  and 
tersely  expounded  in  the  famous  opinion  of  Chief  Justice 
Holt,  one  of  the  most  eminent  and  enlightened  of  the  Eng- 
lish judges  in  the  case  of  Coggs  vs.  Bernard  two  centuries 
ago.  In  Lord  Campbell's  Lives  of  the  Chief  Justices  of 
England,  the  author  says  that  "in  a  short  compass  Holt 
expounded  the  whole  Law  of  Bailment  with  admirable 
clearness  and  accuracy."  The  fundamental  doctrines  of 
the  Law  of  Bailment  as  laid  down  by  Holt  still  remain  to 
a  large  extent  the  law  both  in  England  and  the  United 
States,  although  the  Law  of  Bailment  has  since  been  ap- 
plied to  new  conditions  which  did  not  exist  in  Holt 's  time, 
and  its  general  scope  and  field  of  operation  have  been 
greatly  enlarged.  The  immense  increase  in  the  develop- 
ment of  new  methods  and  facilities  of  handling  and  trans- 
porting goods  and  chattels  in  recent  years  have  made  the 
Law  of  Bailment  one  of  great  importance. 

Questions  requiring  nice  discrimination  and  clear  in- 
vestigation are  constantly  arising,  growing  out  of  the 
complicated  transactions  involved  in  the  transportation 
and  management  of  personal  property  by  transportation 

5 


6  American  Correspondence  School  of  Law 

companies,  by  land  and  by  water,  by  express  companies, 
wharfingers,  warehousemen,  banks  and  other  classes  of 
Bailees. 

The  object  of  this  Review  of  the  Law  of  Bailment  is 
to  give  simply  a  general  view  of  the  fundamental  princi- 
ples of  the  common  law  governing  the  relation  of  Bailor 
and  Bailee. 

These  principles  have  to  some  extent  been  modified 
by  statute  in  different  states  and  the  rights  and  liabilities 
of  certain  classes  of  Bailees  have  been  lessened  or  ex- 
tended thereby. 

II. 

ESSENTIAL   ELEMENTS   OF    A  BAILMENT. 

The  Contract  may  be  oral  or  written,  express  or  im- 
plied by  law  where  no  express  agreement  exists.  It  is 
essential  to  constitute  a  contract  of  Bailment  that  the 
title  to  the  property  delivered  shall  remain  in  the  Bailor. 
In  this  respect  a  Bailment  differs  from  a  sale,  for  while 
the  title  to  the  property  in  the  latter  passes  to  the  vendee, 
in  the  former  it  remains  unchanged  in  the  Bailor.  The 
Bailee  is  under  obligation  to  return  the  Article  bailed  to 
the  Bailor,  or  to  deliver  it  according  to  his  directions  at 
the  termination  of  the  Bailment.  In  a  sale  there  is  no 
obligation  on  the  part  of  the  vendee  to  return  the  specified 
article,  but  the  party  receiving  it  may  return  another 
thing  of  equal  value  in  the  form  of  money  or  otherwise. 

It  is  not  always  essential  that  the  Bailee  should  return 
the  identical  article  received  by  him  to  the  Bailor.  Thus 
when  grain  is  deposited  in  a  warehouse  or  elevator,  to  be 
commingled  with  other  grain,  the  Bailee  may,  according 
to  the  custom  of  trade,  return  an  equal  amount  of  grain 
of  the  same  kind  and  grade. 

So  the  article  returned  may  not  in  certain  cases  be 
identical  in  form  with  that  received.  Thus  materials  may 
be  sent  to  be  manufactured  into  goods  to  be  returned.  So 


Law  of  Bailment  7 

the  delivery  of  milk  to  be  manufactured  into  cheese  and 
butter  for  the  people  constitutes  a  Bailment. 

When  property  is  received  by  one  person  from  another 
with  the  understanding  that  the  former  may  purchase  it 
on  certain  terms  and  conditions  and  that  if  he  pays  for 
it  within  a  certain  specific  time  he  shall  become  the  owner, 
but  that  if  he  does  not  pay  for  it  within  the  specified  time 
he  shall  pay  for  the  use  of  the  article,  the  contract  is  one 
of  Bailment  and  not  of  sale. 

III. 

KINDS    OF   DEPOSIT. 

According  to  the  most  common  classification  there  are 
five  kinds  of  Bailment,  viz. :  Deposit,  Mandate,  Gratui- 
tous Loan,  Pledge  or  Pawn,  and  Bailments  for  Hire. 

Deposit  is  generally  defined  as  a  naked  Bailment  of 
goods  and  chattels,  which  are  to  be  kept  for  the  depositor 
without  reward,  and  to  be  returned  whenever  the  deposi- 
tor demands  it. 

Mandate  occurs  when  it  is  agreed  that  the  Bailee  shall 
do  some  particular  act  with  regard  to  the  article  deliv- 
ered to  him  without  reward. 

Gratuitous  Loan  arises  when  it  is  agreed  that  the 
Bailee  may  use  the  article  delivered  to  him  for  a  certain 
time  or  until  demand  without  paying  for  the  use. 

Pledge  or  Pawn  is  a  Bailment  of  personal  property 
when  the  Bailee  receives  and  holds  the  article  delivered 
to  him  as  a  security  for  the  payment  of  some  debt  or  for 
the  fulfillment  of  some  obligation  incurred  by  the  Bailor 
to  the  Bailee. 

Bailments  for  Hire  include  those  kinds  of  Bailments  in 
which  the  Bailee  hires  the  use  of  the  bailed  article  or  in 
which  he  is  hired  by  the  Bailor  to  perform  or  bestow  some 
labor  or  services  upon  it.  The  latter  class  includes  the 
keeping  of  goods  by  a  warehouseman  and  'the  carriage  of 
goods  for  hire. 


8  American  Correspondence  School  of  Law 

IV. 

DUTIES  OF  BAILEE. — DEGKEES  OF  DILIGENCE. 

In  carrying  out  the  trust  involved  in  every  contract  of 
Bailment,  a  certain  degree  of  diligence  is  required  of  the 
Bailee,  the  degree  of  diligence  depending  upon  the  nature 
of  the  Bailment  to  be  hereafter  referred  'to.  Diligence 
in  this  connection  is  divided  into  three  degrees,  viz.: 
Ordinary  Diligence,  Extraordinary  Diligence  and  Slight 
Diligence. 

Ordinary  Diligence  is  that  diligence  which  persons  of 
common  prudence  exercise  over  their  affairs  in  the  com- 
munity and  age  in  which  they  live.  The  correlative  term 
often  used  in  lieu  of  the  phrase  "want  of  ordinary  dili- 
gence" is  ordinary  negligence. 

Extraordinary  Diligence.  This  is  that  diligence  which 
very  prudent  persons  'take  of  their  own  concerns.  The 
correlative  term^for  the  phrase  "want  of  extraordinary 
diligence"  is  slight  negligence. 

Slight  Diligence  is  that  diligence  which  persons  of  less 
than  common  prudence  or  of  no  prudence  take  of  their 
own  concerns.  The  correlative  term  for  the  phrase  "want 
of  slight  diligence"  is  gross  negligence. 

Several  courts  of  high  authority  have  criticized  the  use 
of  words  denoting  comparative  degrees  of  negligence  as 
of  doubtful  use  or  application. 

See  N.  Y.  R.  R,  Co.  vs.  Lockwood,  17  Wall  (U.  S.), 
382;  Steamboat  New  World  vs.  King,  16  How.  (U.  S.), 
474. 

Whether  the  appropriate  degree  of  diligence  has  been 
exercised  in  a  given  case  depends  upon  the  circumstances 
of  each  particular  case.  Whenever  the  facts  are  at  all  in 
controversy  the  question  is  one  of  fact  for  the  jury.  In 
determining  this  question  the  age,  the  country  and  the 
condition  of  society,  in  which  the  Bailee  lives,  the  cus- 
toms and  usages  of  trade,  the  nature  and  the  value  of  the 
thing  bailed  and  its  liability  to  loss  or  injury  must  be 
considered. 


Law  of  Bailment  9 

V. 

DEGREE  OF  DILIGENCE  IMPOSED   UPON  DIFFERENT   CLASSES 
OF  BAILEES. 

(1)  When  the  Bailment  is  solely  for  the  benefit  of  the 
Bailor  and  the  Bailee  has  no  reward,  the  latter  is  only 
liable  for  the  exercise  of  slight  diligence  and  is  therefore 
only  responsible  for  losses  occasioned  by  gross  negli- 
gence.   Thus  if  a  person  about  to  go  away  from  home 
leaves  an  article  for  his  own  benefit  and  convenience  with 
his  neighbor  without  reward  to  the  latter  to  be  kept  till 
the  Bailee  shall  return  home,  the  Bailee  is  only  liable 
for  the  exercise  of  slight  diligence  and  is  responsible  for 
loss  of  or  injury  to  the  article  only  in  case  of  gross  negli- 
gence on  his  part. 

(2)  In  case  of  gratuitous  loan  or  when  the  Bailee  bor- 
rows an  article  from  the  Bailor  without  hire  or  reward 
and  for  the  sole  benefit  of  the  Bailee,  the  latter  is  respon- 
sible for  the  exercise  of  extraordinary  diligence  over  the 
thing  bailed,  and  is  liable  for  losses  occasioned  by  slight 
neglect ;  thus  if  a  person  borrow  a  horse  of  another  with- 
out compensation  to  go  on  a  certain  journey,  and  the 
Bailee  travels  in  a  different  direction  than  agreed  upon, 
or  to  a  greater  distance,  the  Bailee  is  liable  for  any  in- 
jury which  may  occur  to  the  horse  though  accidental. 
The  borrower  is  not  liable  for  inevitable  accidents  which 
could  not  have  been  foreseen  and  against  which  he  could 
not  guard,  but  he  is  answerable  for  the  least  neglect. 

(3)  When  'the  Bailment  is  for  the  mutual  benefit  of 
both  parties  the  Bailee  is  required  to  exercise  ordinary 
diligence  and  is  answerable  only  for  ordinary  negligence. 
The  Bailee  in  this  class  of  cases  in  'the  absence  of  a 
special  agreement  is  not  generally  an  Insurer  of  the 
goods  intrusted  to  his  care.    To  this  rule  there  are  some 
exceptions  as  in  the  case  of  common  carriers  to  which 
reference  will  be  made  hereafter.    The  Bailee  is  not  liable 
for  losses  occasioned  by  dangers  necessarily  incident  to 


10  American  Correspondence  School  of  Law 

the  use  of  the  articles  intrusted  to  his  care,  .nor  for  the 
losses  occasioned  by  inevitable  accident  or  irresistible 
force. 

By  inevitable  accident  is  meant  every  casualty  pro- 
duced by  physical  causes  which  are  irresistible  in  their 
nature,  such  as  fire,  storm,  inundation,  perils  of  'the  sea 
or  sudden  death. 

Irresistible  force  includes  the  confiscation  of  goods  by 
military  authority,  the  injuries  from  a  hostile  army  and 
losses  by  robbery  or  burglary. 

Shop-keepers,  inn-keepers,  restaurant  proprietors  and 
bath-house  keepers  are  obliged  to  exercise  ordinary  care 
in  the  protection  of  property  entrusted  to  their  keeping 
as  an  incident  to  their  business.  They  are  not  liable  how- 
ever for  losses  occasioned  by  accident  or  by  some  cas- 
ualty which  occurred  without  their  fault.  The  same  prin- 
ciple applies  to  an  artisan  to  whom  is  entrusted  mate- 
rials to  work  up  into  manufactured  articles  for  the  Bailor. 

This  principle  applies  in  general  to  all  cases  of  locatum 
or  hired  services  in  connection  with  a  chattel.  Locatum 
has  been  divided  into  four  classes :  (1)  Hiring  of  a  thing 
for  use  as  hiring  a  horse  and  buggy  at  a  livery  stable. 
(2)  Hiring  of  work  to  be  done  on  a  chattel  as  hiring  a 
tailor  to  make  a  suit  of  clothes  from  cloth  furnished.  (3) 
Hiring  of  care  and  service  to  be  rendered  about  a  specific 
chattel  to  be  kept  by  the  Bailee  for  him  as  in  the  case  of 
a  warehouseman,  inn-keeper  and  men  who  pasture  cattle 
for  hire.  (4)  Hiring  of  the  carriage  of  goods. 

In  all  these  classes  ordinary  care  is  required  of  the 
Bailee  and  he  is  liable  for  all  losses  occasioned  by  ordi- 
nary negligence  on  his  part. 

VI. 

EIGHTS  AND  LIABILITIES   OF   BAILOR  AND   BAILEE    GENEEALLY. 

If  the  article  be  lost  or  injured  while  in  the  possession 
of  the  Bailee  the  presumption,  according  to  the  weight 
of  modern  authority  is  that  the  loss  or  injury  occurred 


Law  of  Bailment  11 

through  the  default  of  the  Bailee  and  the  burden  of  proof 
falls  on  the  Bailee  to  show  that  he  exercised  the  degree  of 
care  required  by  the  particular  contract  of  Bailment,  or 
that  the  loss  occurred  from  some  cause  which  prima  facie 
excuses  him. 

A  Bailee  may  by  special  agreement,  as  a  general  rule, 
limit  the  extent  of  his  liability  but  it  seems  to  be  estab- 
lished by  the  weight  of  authority  that  he  cannot  go  so 
far  as  to  prevent  his  liability  for  losses  occasioned  by  his 
own  negligence. 

So  the  Bailee  may  enlarge  his  liability  by  special  agree- 
ment so  far  even  as  to  become  an  insurer  of  the  property. 

The  Bailee  is  liable  for  the  conversion  of  the  property. 
This  embraces  an  unauthorized  use  of  the  article,  such  as 
using  it  in  a  different  way  or  for  a  longer  time  than  that 
contemplated  by  the  contract.  Thus  where  one  hires  a 
horse  to  go  for  a  specified  distance,  and  he  goes  beyond 
that  distance,  he  becomes  liable  for  an  unlawful  conver- 
sion of  the  horse.  So  the  Bailee  cannot  sell,  pledge,  mort- 
gage or  exchange  the  property,  and  if  he  do  so  he  is  liable 
for  a  conversion.  The  Bailee  has  no  right  to  use  the 
property  in  any  way  not  contemplated  by  the  parties  to 
the  contract  of  Bailment. 

The  Bailee,  until  the  termination  of  the  Bailment,  has 
a  special  property  or  possessory  right  and  interest  in  the 
article  bailed,  and  may  maintain  replevin  to  recover  -pos- 
session from  a  person  wrongfully  taking  the  property  or 
maintain  trespass  or  trover  against  any  person  interfer- 
ing with  his  possession.  As  a  general  rule  the  Bailee  is 
estopped  from  denying  the  title  of  the  Bailor  in  the  prop- 
erty bailed.  This  rule  however  is  subject  to  some  quali- 
fication. Where  a  third  person  claims  title  to  the  prop- 
erty the  Bailee  may  choose  to  have  the  title  tried  at  law, 
but  if  he  does  so,  he  undertakes  the  defense  at  his  peril. 
He  can  in  no  case,  however,  set  up  title  himself  or  avail 
himself  of  the  title  for  his  own  benefit;  he  is  not  liable 
however  for  conversion  when  a  paramount  title  to  that 


12  American  Correspondence  School  of  Law 

of  the  Bailor  has  been  established  or  when  the  property 
has  been  taken  from  him  by  due  process  of  law. 

Either  party  may  maintain  an  action  against  a  third 
person  for  any  wrong  done  to  the  property  bailed,  but  a 
recovery  by  one  is  a  bar  to  a  recovery  by  the  other.  The 
Bailor  may  recover  possession  of  the  property  if  sold, 
pledged  or  mortgaged  by  the  Bailee  to  a  third  person 
who  has  taken  possession,  unless  the  Bailor  has  done 
some  act  which  estops  him  from  claiming  the  prop- 
erty. This  may  occur  when  the  Bailee  has  asserted  his 
ownership  to  the  property  with  the  knowledge  of  a  Bailor 
and  without  objection  on  the  part  of  the  latter.  So  it  may 
occur  when  the  Bailor  has  allowed  the  Bailee  to  so  use 
and  manage  the  property  as  to  amount  to  a  publication 
to  the  world  that  the  Bailee  is  the  owner. 

VII. 

COMPENSATION. 

If  work  and  labor  are  bestowed  by  the  Bailee  upon  the 
article  bailed  he  is  entitled  to  compensation  unless  the 
circumstances  are  such  that  it  can  be  reasonably  inferred 
that  the  services  were  to  be  rendered  without  compensa- 
tion. In  the  absence  of  an  express  agreement  the  law 
will  imply  a  promise  to  pay  what  the  services  are  reason- 
ably worth. 

LIEN  OF  BAILEE. 

The  Common  Law  always  recognized  the  right  of  a 
tradesman  or  an  artisan  to  have  a  specific  lien  upon  the 
particular  article  delivered  to  him  for  the  purpose  of 
having  work  done  upon  it,  for  the  price  or  value  of  the 
work  done.  The  right  to  this  lien  has  however  been  ex- 
tended to  all  cases  where  value  has  been  conferred  upon 
the  thing  bailed  by  his  skill  and  labor,  when  such  lien  was 
not  inconsistent  with  the  terms  of  the  contract. 

This  lien  is  confined  to  the  particular  demand  which 
the  Bailee  has  for  work  and  labor  done  upon  or  about  the 


Law  of  Bailment  13 

article  bailed.  He  has  no  lien  as  a  general  rule  upon  such 
articles  for  services  rendered  at  another  time  or  occa- 
sion for  the  Bailor.  In  a  few  exceptional  cases  a  general 
lien  has  been  allowed  to  secure  the  payment  of  a  balance 
arising  from  mutual  dealings.  Thus  Factors,  Insurance 
Brokers  andWharfingers  have  been  allowed  a  lien  for  a 
balance  arising  from  mutual  dealings. 

A  lien  will  not  attach  for  services  unless  the  parties  to 
the  Bailment  contemplate  compensation  for  services, 
although  the  law  may  imply  a  legal  liability  to  pay  the 
reasonable  value  of  such  service. 

The  lien  may  be  lost  or  waived  by  the  voluntary  sur- 
render of  the  property  by  the  Bailee  or  by  giving  credit 
to  the  Bailor,  or  by  accepting  a  third  person  as  the  payor. 

VIII. 

ENFORCEMENT   OF   A  LIEN. 

At  common  law  the  lien  could  be  enforced  only  by 
keeping  possession  of  the  property  till  payment  was  made 
and  no  sale  could  be  made  by  the  Bailee  to  secure  the 
payment  of  his  services  unless  a  special  agreement  to 
that  effect  had  been  made.  Courts  of  Equity  have  allowed 
rules  to  be  made  in  order  to  enforce  the  lien  in  cases 
where  a  custom  or  usage  had  become  well  established 
with  regard  to  a  particular  trade. 

Generally  however  statutes  have  been  enacted  in  the 
different  states  providing  a  remedy  to  enforce  a  Hen  by 
public  sale. 

IX. 

EE-DELIVEEY  BY  BAILEE. 

It  is  the  duty  of  the  Bailee  to  return  the  property  bailed 
to  the  Bailor  at  the  time  agreed  upon  for  the  termination 
of  the  Bailment. 

When  the  time  is  not  regulated  by  agreement  the  re- 
delivery  must  be  made  within  a  reasonable  time  after  de- 

V 


14  American  Correspondence  School  of  Law 

mand.  What  is  a  reasonable  time  after  demand  must  be 
determined  by  the  circumstances  of  each  particular  case. 

Non-delivery  is  excusable  in  case  the  property  has 
been  destroyed  without  the  fault  of  the  Bailee  or  by  some 
act  over  which  he  had  no  control,  or  when  the  property 
has  been  taken  by  due  process  of  law,  or  by  a  person 
having  paramount  title  or  in  case  the  title  of  the  Bailor 
has  terminated. 

It  is  the  duty  of  the  Bailee  to  give  notice  to  the  Bailor 
of  seizure  of  the  property  by  process. 

X. 

TERMINATION  OF  THE  BAILMENT. 

The  Bailment  may  be  terminated  by  the  following 
causes:  (1)  By  the  expiration  of  the  time  for  which  the 
article  was  bailed.  (2)  By  the  destruction  of  the  article 
bailed  or  because  it  became  unfit  for  the  purpose  for 
which  it  was  bailed.  (3)  By  the  accomplishment  of  the 
object  for  which  the  article  was  bailed.  (4)  By  a  rescis- 
sion of  the  contract  upon  grounds  recognized  as  valid  by 
the  law  of  contracts.  (5)  By  an  act  of  illegal  conversion 
of  the  property  by  the  Bailee. 

When  the  Bailment  is  for  the  benefit  of  both  parties 
and  the  contract  specifies  no  time  for  fulfillment,  either 
party  may  terminate  the  Bailment  by  giving  notice,  the 
party  receiving  the  notice  having  a  reasonable  time  with- 
in which  to  comply.  The  same  rule  applies  to  a  case  of 
Bailment  where  it  is  made  for  the  sole  benefit  of  the 
Bailor. 

So  the  death  of  either  party  may  terminate  the  Bail- 
ment. 

XI. 

SPECIAL  CLASSES  OF  BAILEES. 

Finder  of  Lost  Goods.  The  finder  of  lost  goods  be- 
comes a  depositary.  He  can  defend  his  rights  as  against 
all  but  the  true  owner."  It  is  his  duty  to  restore  the  goods 


Law  of  Bailment  15 

to  the  true  owner  when  discovered.  He  is  not  entitled 
to  compensation  unless  he  has  been  put  to  necessary  ex- 
pense. 

Inn-keepers.  An  Inn-keeper  is  one  who  keeps  his  house 
open  regularly  and  for  reward  for  the  lodging,  refresh- 
ing and  entertaining  of  travelers.  Saloons,  restaurants 
and  boarding  houses  are  not  regarded  at  common  law 
as  inns. 

The  common  law  was  very  rigid  in  requiring  the  inn-  , 
keeper  to  keep  the  goods  of  his  guests  safely.    He  was 
liable  for  any  loss  of  goods  which  was  not  occasioned  by 
the  act  of  God,  the  public  enemy  or  the  negligence  of  the 
guest  or  his  servants. 

This  rule  has  been  modified  by  some  authorities  which 
have  held  that  the  Inn-keeper  is  not  liable  for  losses 
occasioned  by  accidental  casualties  or  riots. 

The  common  law  liability  has  been  modified  in  many 
states  by  statutes  limiting  his  liability  among  other  things 
to  ordinary  baggage  necessary  for  the  journey  and  suit- 
able to  the  guest's  station  in  life. 

The  Inn-keeper  has  a  lien  to  secure  the  payment  of  his 
charges  on  the  goods  deposited  by  his  guest. 

XII. 

COMMON   CAERIEKS  OF  GOODS. 

A  common  carrier  is  one  whose  business  it  is  to  trans- 
port goods  for  hire  and  who  holds  himself  ready  to  carry 
them  for  all  persons  who  apply  and  pay  the  hire.  The 
transportation  may  be  by  land  or  water.  A  private  or 
special  carrier  is  one  who  undertakes  to  carry  goods  for 
reward  for  special  persons  or  on  special  occasions  and 
who  does  not  make  hired  transportation  his  general  call- 
ing. Within  the  term  "Common  carriers"  are  embraced 
railroad  companies,  ferry-men,  canal  boatmen  and  owners 
of  carrying  vessels. 

The  subject  of  common  carriers  is  one  of  vast  scope. 


16  American  Correspondence  School  of  Law 

Our  purpose  in  this  Review  is  only  to  set  forth  briefly 
the  general  and  underlying  principles  which  govern  the 
rights  and  liabilities  of  common  carriers  as  Bailees  of 
goods  and  chattels. 

xm. 

> 

GENERAL  DUTIES. 

A  common  carrier  is  under  obligation  to  carry  all 
goods  tendered  to  it  for  transportation,  if  it  holds  itself 
out  as  willing  to  carry  such  goods  and  is  tendered  proper 
charges.  The  goods  must  be  transported  promptly  and 
within  a  reasonable  time.  If  there  is  unreasonable  de- 
lay in  the  transporting  and  the  delivery  of  the  goods  the 
carrier  is  liable  for  whatever  losses  may  result  to  the 
shipper  as  a  proximate  consequence  of  the  delay.  What 
is  unreasonable  delay  is  a  question  of  fact  which  must 
be  determined  from  the  circumstances  of  each  particular 
case,  such  as  the*  state  of  the  weather,  the  mode  of  con- 
veyance, the  character  of  the  freight,  the  season  of  the 
year,  the  distance  to  be  transported,  and  the  ordinary 
facilities  of  transportation.  It  is  the  duty  of  a  Railroad 
Company  not  only  to  accept  goods  tendered  by  individual 
or  private  shippers  but  also  from  connecting  lines  of 
transportation,  providing  that  the  goods  are  such  as  are 
ordinarily  shipped  by  Railroad  Companies  and  the  trans 
poration  is  according  to  the  usual  course  of  business. 
The  carrier  may  by  public  advertisement  within  proper 
and  reasonable  limits  designate  and  fix  the  nature  of  the 
articles  which  it  proposes  to  transport,  and  the  kind  of 
cars  and  conveyanees  which  must  be  used  to  transport 
certain  classes  of  goods.  He  may  refuse  to  carry  danger- 
ous articles,  such  as  dynamite,  and  also  goods  that  are 
so  defectively  packed  as  to  entail  extra  risk.  The  accept- 
ance of  goods  by  the  carrier  however  is  a  waiver  of  all 
rights  to  object  on  these  grounds. 


Law  of  Bailment  17 

XIV. 

LIABILITY  FOR  LOSS  OK  INJURY  TO  THE  GOODS. 

A  common  carrier  of  goods  is  regarded  as  an  insurer 
for  the  safe  transportation  and  delivery  of  the  goods  en- 
trusted to  it  for  carriage.  In  this  respect  the  degree  of 
liability  of  common  carrier  differs  from  that  of  Bailees 
in  general.  To  this  rule  there  are  some  exceptions. 

The  common  carrier  is  not  liable  for  losses  occasioned 
by  the  act  of  God  or  by  the  public  enemy.  The  act  of 
God  or  inevitable  accident  is  such  irresistible  disaster  as 
results  at  once  from  natural  causes  and  which  cannot  be 
attributed  to  human  agency.  This  will  embrace  damage 
by  earthquakes*,  tempests,  floods,  lightning,  sudden  frosts 
and  similar  occurrences.  The  act  of  God  must  be  the  prox- 
imate cause  of  the  injury  in  order  to  excuse  the  carrier 
and  the  carrier  must  himself  be  free  from  contributory 
negligence.  Accidents  from  fire,  explosions  and  collisions 
are  not  regarded  as  an  act  of  God. 

The  carrier  is  not  liable  for  losses  occasioned  by  an 
armed  force  large  enough  to  render  resistance  fruitless, 
nor  for  those  occasioned  by  Indian  tribes  in  a  state  of 
war,  by  pirates  and  privateers.  By  the  weight  of  author- 
ity the  common  carrier  is  .not  liable  for  losses  occasioned 
by  mobs  when  it  has  exercised  reasonable  care  in  taking 
precautionary  measures. 

XV. 

LIMITATION    OF   LIABILITY   BY    AGREEMENT. 

The  common  carrier  may  limit  his  common  law  liability 
by  special  contract  but  it  has  been  held  by  many  courts 
that  he  cannot  be  allowed  to  prevent  his  liability  for  his 
negligence  by  stipulation.  It  is  well  established  that  he 
cannot  exempt  himself  from  liability  for  losses  occasioned 
by  his  own  gross  negligence.  The  Supreme  Court  of  the 
United  States  has  held  that  the  common  carrier  cannot 


18  American  Correspondence  School  of  Law 

limit  his  liability  by  special  contract  so  far  as  to  release 
him  from  responsibility  for  losses  occasioned  by  his  own 
negligence,  although  the  contract  may  be  valid,  in  the 
state  where  made. 

A  general  public  notice  is  not  sufficient.  The  modifica- 
tion of  the  common  law  liability  must  be  brought  home 
to  the  notice  of  the  shipper  or  approved  by  him  before 
the  shipment  is  made. 

What  constitutes  notice  to  the  shipper  has  been  the 
subject  of  some  controversy  in  the  Courts.  It  seems  to 
be  held  by  the  weight  of  authority  in  the  United  States 
that  when  the  shipper  accepts  a  receipt  or  a  Bill  of 
Lading  from  the  common  carrier  which  contains  a  limi- 
tation of  the  common  law  liability  such  instrument  is 
binding  on  the  shipper,  when  it  is  not  unreasonable  or 
illegal. 

XVI. 

WAREHOUSEMEN. 

A  warehouseman  is  one  who  receives  and  stores  goods 
and  chattels  as  a  business  for  compensation  and  profit. 

The  warehouseman  is  under  obligation  to  provide  a 
building  for  storage,  reasonably  safe  and  suitable  for 
the  purpose  and  safe  against  common  and  ordinary  occur- 
rences. He  must  use  ordinary  care  and  diligence  in  the 
protection  of  the  property  entrusted  to  him.  What  con- 
stitutes ordinary  care  must  be  determined  from  the  sur- 
rounding facts  and  circumstances.  Local  usage  or  custom 
may  govern  the  degree  of  care  required. 

The  warehouseman  is  not  liable  for  losses  of  goods  by 
fire  which  are  not  the  result  of  his  own  negligence.  Nor 
is  he  liable  for  loss  by  theft  when  he  has  exercised  ordi- 
nary care. 

When  grain  is  deposited  in  a  mass  a  warehouseman 
must  deliver  to  the  depositor  an  equal  amount  of  the  same 
quality  deposited. 


Law  of  Bailment  19 

EXPRESS  COMPANIES. 

An  express  company  is  regarded  as  a  common  carrier 
and  is  therefore  liable  for  all  losses  or  damages  done  to 
goods  intrusted  to  it  for  transportation  unless  such  loss 
or  damage  was  occasioned  by  the  act  of  God  or  the  public 
enemy. 

If  the  shipper  fraudulently  conceals  the  real  nature  or 
value  of  the  goods  and  thereby  misleads  the  express  com- 
pany the  company  in  any  event  is  liable  only  for  the  ap- 
parent value  of  the  goods.  The  express  company  how- 
ever, is  generally  bound  to  make  inquiry  as  to  the  value 
of  the  goods  and  the  shipper  must  make  a  true  answer. 

The  express  company  is  under  obligation  to  deliver  the 
goods  to  the  consignee  or  his  duly  authorized  agent  at  his 
residence  or  place  of  business.  This  may  be  varied  by 
custom  or  usage  at  small  way  stations  when  the  business 
is  small.  In  such  cases  the  goods  may  be  held  at  the  sta- 
tion to  be  delivered  there  to  the  consignee  upon  prompt 
notice  of  the  arrival  of  the  goods.  The  custom  however 
must  be  reasonable,  of  long  continuance  and  notorious. 

If  the  consignee  refuses  to  or  neglects  to  receive  the 
goods  and  pay  the  express  charges  when  sent  C.  0.  D.  the 
company  then  ceases  to  be  a  common  carrier  and  assumes 
the  obligations  of  a  warehouseman.  The  company  must 
however  notify  the  consignor  at  once  that  the  goods  are 
held  subject  to  his  order. 


